52 M.J. 709

UNITED STATES, Appellee, v. Private E2 Angela L. JAMES, United States Army, Appellant.

ARMY 9601113.

U.S. Army Court of Criminal Appeals.

27 Jan. 2000.

For Appellant: Captain Thomas Jay Barrett, JA (argued); Colonel John T. Phelps II, JA; Colonel Adele H. Odegard, JA; Lieutenant Colonel Michael L. Walters, JA; Major Leslie A. Nepper, JA (on brief); Major Scott R. Morris, JA; Major Jonathan F. Potter, JA.

For Appellee: Captain Mary E. Braisted, JA (argued); Colonel Joseph E. Ross, JA; Lieutenant Colonel Frederic L. Borch III, JA (on brief); Colonel Russell S. Estey, JA; Lieutenant Colonel Eugene R. Milhizer, JA.

Before MERCK, KAPLAN, and BROWN, Appellate Military Judges.

OPINION OF THE COURT ON FURTHER REVIEW

PER CURIAM:

A military judge sitting alone as a general court-martial found the appellant guilty, in accordance with her pleas, of willfully disobeying the lawful command of a superior commissioned officer, making false official statements to U.S. Army Criminal Investigation Command agents (two specifications), and making and uttering numerous checks *710without sufficient funds (five specifications), in violation of Articles 90, 107, and 123a, Uniform Code of Military Justice, 10 U.S.C. §§ 890, 907, and 923a [hereinafter UCMJ]. The military judge sentenced the appellant to a bad-conduct discharge, confinement for sixty days, forfeiture of all pay and allowances, reduction to Private El, and a $1,000.00 fine. The convening authority, on the advice of his staff judge advocate,1 reduced the forfeitures to $577.00 pay per month for six months and otherwise approved the sentence as adjudged.

APPELLATE HISTORY

This case initially came before the court in November 1997 for automatic review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. We determined that prejudicial error existed and remanded, the case to The Judge Advocate General for transmittal to an appropriate convening authority for the appointment of a sanity board pursuant to R.C.M. 706. Thereafter, the convening authority was to order an evidentiary hearing before a military judge pursuant to United, States v. Du-Bay, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967). See United States v. James, 47 M.J. 641 (Army Ct.Crim.App. 1997). The mandated sanity board was completed at Heidelberg, Germany, on 23 December 1997, and the DuBay hearing was held before a military judge at Mannheim, Germany, on 22 and 29 December 1997. Thereafter, the processing of the case became bogged down. Delay in assembling the verbatim record of the evidentiary hearing and the omission of appellate exhibits relied upon by the judge in reaching her findings of fact and conclusions of law necessitated this court ordering the record to be returned a second time to the convening authority for correction. Finally, in May 1999, the properly authenticated record was returned to the office of the Clerk of Court. Supplemental pleadings were then filed by the appellant and the government, and the case became ripe for further review in October 1999.

ASSIGNMENTS OF ERROR

The appellant has advanced a total of seven assignments of error in her original and supplemental pleadings,2 and she has person*711ally raised one matter pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).3 We have already granted the appellant relief on two of the assignments of error (by ordering a sanity board and by ordering a full and complete record of the DuBay hearing). Upon further review, we have determined that the appellant is entitled to relief as more fully explained below with respect to her third supplemental assignment of error. We find no merit in the remaining assignments of error4 or in the Grostefon matter; however, the appellant’s fourth supplemental assignment of error merits discussion.

DISCUSSION

In her third supplemental assignment of error, the appellant correctly asserts that applying the provisions of Article 57(a), UCMJ, 10 U.S.C. § 857(a), in her case would give rise to a violation of the Ex Post Facto Clause of the United States Constitution. See United States v. Gorski, 47 M.J. 370 (1997). The crimes of which the appellant was properly convicted were all committed prior to the end of September 1995. Her court-martial concluded, and she was sentenced, on 13 June 1996. In the interim period, amendments to the UCMJ took effect on 1 April 1996.5 Therefore, the appellant has correctly identified herself as a member of the class of persons protected by the holding in Gorski from statutorily mandated enhanced punishment. Under the provisions of Article 57(a)(1), UCMJ, in effect at the time of the appellant’s trial, any forfeiture of pay would have applied commencing on 27 June 1996, the date that is fourteen days after the date on which the sentence was adjudged. Under the law existing prior to the 1996 UCMJ amendments, any forfeiture of the appellant’s pay would not have gone into effect until 3 October 1996, the date of the convening authority’s Article 60, UCMJ, 10 U.S.C. § 860, action on the ease. We will refer this case to The Judge Advocate General for a determination of the amount of relief, if any, to which the appellant is entitled.

In the appellant’s fourth supplemental assignment of error, the appellant asserts that the finding of guilty of Charge III and its Specification must be set aside because her company commander’s order “not to write any more checks” was overly broad. We disagree and hold that the order was not “so broadly restrictive of a private right” of the appellant so as to be “arbitrary and illegal.” United States v. Wilson, 12 U.S.C.M.A. 165, 166, 30 C.M.R. 165, 166, 1961 WL 4416 (1961).

*712Whether an order is lawful is a question of law that we review de novo. See United States v. Padgett, 48 M.J. 273, 277 (1998). The facts, as set forth in the providence inquiry and stipulation of fact, are that the appellant’s commander ordered the appellant on or about 14 August 1995 to cease writing checks. At the time the order was given, the Criminal Investigation Command (CID) was investigating the appellant for writing numerous worthless checks to the Army & Air Force Exchange Service (AAFES) and civilian commercial establishments dating from December 1994 to the time frame of the company commander’s order.

As correctly stated by the appellee, the order did not prohibit the appellant from withdrawing money from her bank through the use of an automatic teller machine or by walking into her bank, nor did the order foreclose the appellant’s ability to pay her bills through the use of money orders or by military allotment. Given the extremely large number of worthless checks that the appellant wrote on her accounts at military and private banking institutions, it was apparent that she was unwilling to manage a checking account. We have no difficulty in finding a sufficient military nexus to the commander’s order to find the order lawful, and we do not find the order to have been “unduly restrictive” of the appellant’s personal liberty. United States v. Blye, 37 M.J. 92, 94 (C.M.A.1993).

In addition, our dissenting brother asserts that the finding of guilty of Charge III and its Specification must be set aside, not because of the order’s scope, but because the appellant may not be punished for both disobedience of the order and the substantive violation of the law, to wit: writing worthless checks. We disagree with our dissenting brother’s analysis and conclusion.

Our superior court in Padgett, 48 M.J. at 278, stated that “a commander may not issue an order to obey the law and then punish a servicemember for both the substantive violation of the law and disobedience of the order.” The court cited paragraph 14c(2)(a)(iii), Part IV, of the Manual for Courts-Martial, and quoted language therefrom in support of its position: “Disobedience of an order ... which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.” The court in Padgett evaluated the order to determine the purpose for which the order was given.

An order “purporting to regulate personal affairs is not lawful unless it has a military purpose.” Padgett, 48 M.J. at 276. A military purpose includes “all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.” Manual for Courts-Martial, United States (1995 ed.), Part IV, para. 14c(2)(a)(iii).

We hold that the order in this case had a valid military purpose and was not given to improperly escalate punishment. The appellant’s commander ordered the appellant to cease writing checks altogether. She did not order the appellant to cease writing “bad checks.” In other words, the commander did not merely purport to order the appellant to obey the law. The order had a preventive and protective function. As stated previously, CID was investigating the appellant for writing worthless checks at the time the order was given. The appellant had checking accounts at military and private banking institutions and negotiated over 100 bad checks at AAFES and civilian commercial establishments from December 1994 to August 1995. The company commander attempted to prevent the appellant from engaging in further conduct which would negatively impact the appellant, the unit, AAFES, civilian commercial establishments, and military and private banking institutions. The order was necessary to promote the morale and discipline of the unit and was directly connected with the maintenance of good order in the service.

The appellant’s direct defiance of her commander’s order constitutes the “ultimate offense” in this case, and, as such, is “separately chargeable and separately punishable” *713from the worthless check offenses. United States v. Pettersen, 17 M.J. 69, 72 (C.M.A. 1983).

DECISION

The findings of guilty and the sentence are affirmed. Our resolution of the Gorski issue in this case is referred to The Judge Advocate General who will determine the amount of relief, if any, to which the appellant is entitled, subject to any setoffs that may pertain under applicable law and regulations. The case need not be returned to this court for further review of the Gorski issue.

KAPLAN, Judge,

concurring in part and dissenting in part:

I join my brothers in their resolution of all issues in this appeal except as to Supplemental Assignment of Error IV. In this assignment of error, the appellant has claimed that the guilty finding as to Charge III and its Specification, alleging disobedience of her commander’s order “not to write any more cheeks,” must be set aside because the order was overly broad. I would dismiss this charge and specification, but for a different reason. The appellant was pending charges for writing checks with insufficient funds on 14 August 1995 when her commander ordered her to cease writing all checks. In effect, the order constituted an order to cease violating the law, i.e., Article 123a, UCMJ. Between 14 August and 27 September 1995, the appellant wrote additional checks with insufficient funds and was appropriately charged and convicted of those offenses. As our superior court has recognized, “[A] commander may not issue an order to obey the law and then punish the servicemember for both the substantive violation of the law and disobedience of the order.” United States v. Padgett, 48 M.J. 273, 278 (1998); see also United States v. Bratcher, 18 U.S.C.M.A. 125, 128, 39 C.M.R. 125, 128, 1969 WL 5928 (1969) (“[A]n order to obey the law can have no validity beyond the limit of the ultimate offense committed.”). I would set aside the findings of guilty as to Charge III and its Specification, reassess the sentence utilizing the criteria of United States v. Sales, 22 M.J. 305 (C.M.A.1986), and affirm the sentence as approved by the convening authority.

United States v. James
52 M.J. 709

Case Details

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United States v. James
Decision Date
Jan 27, 2000
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52 M.J. 709

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United States

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